Social Security and Labour Law: The Covid-19- reponse of Switzerland - CIELO laboral

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Social Security and Labour Law: The Covid-19-
reponse of Switzerland
Kurt Pärli

I) Legal basis of the governmental measures

Switzerland is a semi-direct democracy with a strong federalist structure, in which the cantons have
a great deal of autonomy, particularly in the area of health care. However, the Federal Constitution
provides in Art. 185 para. 3 that "The Federal Government may, directly based on this article, issue
ordinances and orders to meet existing or imminent great disturbance of the public order, the
external or the inner security. Such ordinances have to be limited in time." In the event of an
epidemic, the Federal Epidemics Act is also relevant. This law differentiates between a particular
and an extraordinary situation. In an extraordinary situation, the powers to combat the epidemic are
transferred from the cantons to the Confederation. On 16 March 2020, the government (in
Switzerland, as you know, there are seven equal members) decided that an extraordinary situation
now existed.1 in June 2020, the extraordinary situation ended and since then democracy has been
established, i.e. Parliament is again involved in decision-making on the Covid 19 measures.
However, the government still has a very large competence to decide on measures. With the Covid
19 Act, the parliament has created the basis for the power of the executive. 2

During the crisis, which is still ongoing (February 2021), numerous measures have been and are
being taken to contain the pandemic. 3 Economic activities have been and are being restricted by
official orders. In the following, the content and structure of the labour and social security
measures are examined in more detail.

II) Regulations in the field of social security and labour law

The shutdown of numerous shops and the situation in hospitals heavily burdened with Covid-19
patients quickly required official measures in the areas of labour law and social security. The
Federal Council recognized that social acceptance of the restrictive measures (both in terms of
personal freedom and, in particular, economic activities) that are necessary from an epidemiological
point of view would depend on the provision of rapid and readily accessible support to the persons
affected. This is particularly important in order to avoid exacerbating the coming economic crisis
and to mitigate its consequences.

1
  https://www.admin.ch/gov/en/start/documentation/media-releases.msg-id-78454.html
2
  https://www.fedlex.admin.ch/eli/cc/2020/711/en
3
  https://www.bag.admin.ch/bag/en/home/krankheiten/ausbrueche-epidemien-pandemien/aktuelle-ausbrueche-
epidemien/novel-cov/massnahmen-des-bundes.html#850493620

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1. Expansion of entitlement to short-time work compensation

Unemployment insurance, which is mandatory for all employees, uses the instrument of short-time
working. Employees receive 80% of their wages from the unemployment insurance and can thus
keep their jobs. Short-time working is approved by the competent authorities in the event of an
exceptional situation. Immediately after the closure of shops by the authorities, the Federal Council
recognized the coronavirus crisis as a reason for short-time working and the eligible group of
persons was considerably expanded compared to the normal situation. According to the relevant
ordinance4, even temporary employees or persons in employer-like positions have a right to short-
time work compensation. The instrument of short-time work compensation proved and still proves
to be a very efficient form of support for the economy. Up to a quarter of all employees in
Switzerland have temporarily received short-time work compensation.

2. Introduction of new social security allowances

On the basis of emergency legislation, the Federal Council has also introduced new social security
benefits for self-employed persons and for employees who are prevented from working because of
official measures in connection with coronavirus. Particularly noteworthy is the setting up of social
security benefits for self-employed persons due to loss of earnings.

The background to these emergency measures is as follows:
       The official measures to fight against the epidemic are far-reaching, particularly with regard
       to school closures. This poses a problem for employed persons in that smaller children in
       particular cannot simply be left to fend for themselves. Parents have an ethical-social duty to
       look after their children and it is so far unclear whether an employer has to pay the salary in
       such a situation. The situation is even more precarious for self-employed persons, because
       the risk of looking after the children themselves due to the closure of the schools is not
       insured and probably not insurable.
       People who have tested positive for the coronavirus must go into isolation. People who have
       had close contact with a person who has tested positive must go into quarantine. 5
       As a result of the orders in COVID-19 Ordinances, numerous companies have had to close
       down temporarily and countless events cannot take place. The question here is whether a
       company in this situation must continue to pay wages despite the lack of employment
       opportunities. The decisive question is whether or not an epidemic or its consequences are
       part of the employer risk. This question has not yet been settled by the highest court. The
       views in jurisprudence are divided.
       According to the current legal situation, self-employed persons have to bear the risk of the
       economic consequences of an epidemic entirely on their own. There is neither an employer
       against whom a wage claim can be asserted, nor is there a claim to unemployment insurance
       benefits.

The law now allows self-employed persons and employees in the aforementioned categories to be
entitled to social security benefits. 6

3. Particularly vulnerable workers 7

4
  https://www.admin.ch/opc/fr/classified-compilation/20200805/index.html (no official translation in English available).
5
  https://www.bag.admin.ch/bag/en/home/krankheiten/ausbrueche-epidemien-pandemien/aktuelle-ausbrueche-
epidemien/novel-cov/isolation-und-quarantaene.html#-883252542
6
  https://www.bsv.admin.ch/bsv/fr/home/assurances-sociales/eo-msv/grundlagen-und-gesetze/eo-corona.html (no
official translation in English available)

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The Covid-19 regulations also take into account the increased risk to certain persons. Particularly
vulnerable persons should stay at home and avoid crowds. Persons who have the following
illnesses in particular are considered to be particularly at risk: high blood pressure, diabetes,
cardiovascular diseases, chronic respiratory diseases, diseases and therapies that weaken the
immune system, or cancer.

The Government faced a difficult task. How can particularly vulnerable employees be protected
from being infected with the coronavirus on the way to work and during work at the workplace? On
the one hand, this is important to protect the health of these employees. In contrast to people who
are not particularly at risk, the effects of coronavirus infection are extremely serious. On the other
hand, the protection of particularly vulnerable persons also has an overall social dimension
(protection against overwork in hospitals and clinics). But how can this necessary protection be
designed in such a way that the measures are acceptable for individual employees and the economy
as a whole? And how can contradictions of judgement be avoided, in which particularly endangered
persons should virtually go into self-isolation even without any concrete suspicion of infection, and
at the same time be obliged to accept a possibly long journey to work and encounters with a large
number of people at the workplace?

The solution finally found represents an overall successful attempt to reconcile the diverging
interests. The cascade-like regulation provides the companies and their employees with a
framework for action within which various solutions adapted to the specific company conditions are
possible. Employers must allow vulnerable employees at risk to work from home and must
undertake the necessary organisational and technical measures, and if necessary allow them to
undertake appropriate alternative tasks. If a person at especially high risk is only able to perform
their work at the workplace, the employer must adapt the workplace or working procedures
accordingly to ensure that the person is protected. If the employer fails to do so, the employee at
risk must be placed on leave but continue to receive their wages. If it is not possible for the
employee concerned to work from home and if they consider the risk to their health to be too great,
they may refuse to work at the workplace. The employer must then place the employee on leave
while continuing to pay their wages. but the employer can claim back the expenses for the salary
from the social security. Employees at especially high risk must provide their employer with a
personal declaration to that effect. The employer may request a doctor’s certificate.

4. Some employment Law Covid-19 Issues and Answers

In terms of labour law, Covid-19 raises a number of questions. Covid-19 positive workers who are
unable to work because of Covid are uncomplicated. Here, as with other illnesses, the employer
must pay wages for a limited period of time. Likewise, there are no particular questions about the
protection against dismissal for employees who are ill because of Covid-19 and are therefore unable
to work (there is protection against dismissal for a limited period of time). What is controversial,
however, is whether employees who are in quarantine or isolation and cannot do home office work
are protected against dismissal. There is no explicit legal regulation on this in Switzerland.

7
  https://www.bag.admin.ch/bag/en/home/krankheiten/ausbrueche-epidemien-pandemien/aktuelle-ausbrueche-
epidemien/novel-cov/krankheit-symptome-behandlung-ursprung/besonders-gefaehrdete-menschen.html ; the special
rules for the vulnerable employees are based on art. 27a of covid-19-Ordinance, see:
https://www.newsd.admin.ch/newsd/message/attachments/64873.pdf (french only, no official translation in English
available)

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Health protection at the workplace is very important. In addition to the general provisions in the
Labour Contract Law and the Labour Act, the government has also issued a number of ordinances,
which can be summarised as follows:
1. The employer shall take further measures in accordance with the STOP principle, namely
   physical separation, separate teams or the wearing of face masks in outdoor areas. The STOP
   principle includes (in order of priority): 8
       • S = Substitution ("replace"): Arrangement of home office.
       • T = technical measures: Separation discs, markings to keep a distance of 1.5 metres,
           sufficiently ventilate work rooms, regular hand washing/hand disinfection, cleaning of
           frequently touched objects (door handles, lift buttons, coffee machines, etc.).
       • O = organisational measures: Do not mix people or teams. In the case of group
           transports, make several trips.
       • P = personal protective measures: Wear protective equipment (besides face masks, e.g.
           gloves or similar).
2. In principle, there is a home office obligation, unless this is not possible due to the nature of the
   activity or cannot be implemented with reasonable effort. The employer shall take the
   appropriate organisational and technical measures to enable home office. The employer does not
   owe the employee any compensation for expenses for home office that is arranged in
   accordance with this provision.

III) Summarizing assessment

Extraordinary times call for extraordinary measures. The Federal Council has recognized that social
acceptance of the restrictive measures that are necessary from an epidemiological point of view)
also depends on the provision of rapid and not bureaucratic support to the persons affected. This is
particularly important in order to avoid exacerbating the coming economic crisis and to mitigate its
consequences.

All in all, it was possible to prevent a wave of mass redundancies, at least for the time being, mainly
thanks to the instrument of short-time work compensation. It should also be positively emphasised
that the Federal Council and, since its "resurrection", also parliament (Covid 19 Act and other
parliamentary resolutions) have recognised in principle that, in the current crisis, financial
protection for people in precarious employment (fixed-term and or temporary employment) in
particular is essential.

In the aftermath of the Covid 19 crisis, it must be critically asked to what extent labour law should
still allow such precarious forms of employment in the future. It is clear that the labour market and
global competition require flexibility and (a new trend word...) agility from employees. Such skills
are to be promoted and demanded. However, this must and must not necessarily go hand in hand
with a lack of or only weak social security.

This paper has shown that the provisions of labour and social law have an epidemiological
reference. Here it is also important to learn from the experience in the fight against HIV infection. It
is true that not all parts of the HIV/AIDS epidemic can be compared with the situation regarding
Corona virus/Covid-19 disease. The "fight against AIDS" has shown that respect for fundamental
rights and effective social protection are an essential part of responsible behaviour towards oneself
and others.

8
 https://www.seco.admin.ch/seco/fr/home/Arbeit/Arbeitsbedingungen/protection-des-travailleurs/covid-
19/pflichten_arbeitgeber_covid19.html (no official translation in English available)

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Particular importance is attached to the newly created social security benefits within the framework
of compensation for loss of earnings. The necessity of integrating self-employed persons into a
social security system in case of loss of income is already evident during the first wave in spring
2020. This has become even more evident since autumn 2020. Especially in the event and culture
industry, there are many fully or partially self-employed persons who have lost part or all of their
income due to the event bans. Without the opening of the social security system for these groups of
people, the proportion of people who are or will be dependent on social welfare would be much
higher.

The problem of social security for the self-employed is (is) also evident in the context of the
emergence of new business models via internet platforms. The experiences with the protection of
the self-employed during the Covid 19 crisis can and should be made fruitful in the necessary
political discussion on self-employment and social security. However, some conceptual work is still
needed here.

The role of the social partners is central in time of crisis. Quite rightly, their role is therefore also
expressed in the Covid 19 Act. Particularly when ordinances and amendments to ordinances have to
be issued under great time pressure in view of a changed epidemiological situation (e.g. the
emergence of the highly contagious virus mutation), it is essential to draw on the expertise of the
social partners. This not only serves to improve legislation, but also supports acceptance in practice.

                                                                                                     Kurt Pärli
                                                          Professor for Social Private Law, University of Basel

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